Garrett v. The City of New York

• Decision Date: 26 July 2022
• Docket Number: Index No. 160103/2016,Motion Seq. Nos. 002,003,004
• Citation: 2022 NY Slip Op 32502 (U)
• Parties: YVETTE GARRETT, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 32502(U)

YVETTE GARRETT, Plaintiff,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY Defendants.

Index No. 160103/2016, Motion Seq. Nos. 002, 003, 004

Supreme Court, New York County

July 26, 2022

Unpublished Opinion

MOTION DATE 09/24/2021, 07/19/2021, 07/23/2021 .

PRESENT: HON. J. MACHELLE SWEETING, Justice.

DECISION + ORDER ON MOTION

HON. J. MACHELLE SWEETING, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 43, 45, 47, 48, 49, 50, 51, 52, 53, 54, 62, 64, 83, 84, 85 were read on this motion to/for JUDGMENT - SUMMARY_.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 46, 55, 56, 57, 58, 59, 60, 61, 63, 79, 80, 81, 82 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

The following e-filed documents, listed by NYSCEF document number (Motion 004) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 87, 88, 89, 90, 91, 94, 95 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

This is an action for personal injuries allegedly sustained by plaintiff on September 10, 2015 at approximately 10:00 a.m. as a result of an alleged trip and fall while walking on Foley Square Park in Manhattan.

Pending now before the court are three motions:

The first is Motion #002, wherein defendant The New York City Transit Authority ("NYCTA") seeks an order, pursuant to Civil Practice Law and Rules ("CPLR") Sections 3211 and 3212, granting summary judgment in favor of NYCTA and and dismissing plaintiffs complaint against NYCTA.

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The second is Motion #003, wherein defendant The City of New York (the "City") seeks an order: (a) pursuant to CPLR §3212, granting summary judgment in favor of the City and dismissing plaintiffs complaint and all cross-claims with prejudice as to the City; or in the alternative (b) granting contractual indemnification in favor of the City and against NYCTA.

The third is Motion #004 wherein plaintiff seeks an order, pursuant to CPLR 3212, granting her summary judgment with respect to all defendants, on the grounds that there are no triable issues of fact as to defendants' negligence.

Upon the forgoing documents, and upon oral arguments held before the undersigned on February 3, 2022, these motions are decided as follows:

Standard for Summary Judgment

The function of the court when presented with a motion for summary judgment is one of issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]; Weiner v. Ga-Ro Die Cutting. Inc.. 104 A.D.2d 331 [Sup. Ct. App. Div. 1^st Dept. 1985]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY Ct. of Appeals 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY Ct. of Appeals 1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [Sup. Ct. App. Div. 1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable

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issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, and failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 N.Y.2d 320 [N.Y. Ct. of Appeals 1986]).

Further, pursuant to the New York Court of Appeals, "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York. 49 N.Y.2d 557 [N.Y. Ct. of Appeals 1980]).

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Timeliness and Procedural Objections

As a preliminary matter, the parties raised procedural arguments with respect to the timeliness of the motions.

The City argues that plaintiffs motion is untimely pursuant to the Part Rules of the undersigned that are currently in effect. However, this argument is without merit, whereas here, there exists a July 19, 2018 court order by Honorable Judge Lisa A. Sokoloff (NYSCEF Document #10) that provides that any dispositive motions must be made within 120 days of the filing of the Note of Issue ("NOT"). Here, the NOI was filed on May 26, 2021 and plaintiffs motion was filed on September 24, 2021. Accordingly, plaintiffs motion was timely filed.

Plaintiff next argues that defendants' motions are defective because they each failed to annex a separate Statement of Material Facts pursuant to 22 NYCRR 202.8-g(a). NYCTA and the City each conceded the omission, and each attempted to cure the defect by attaching a Statement of Material Facts to their respective reply papers. The City also addressed the error in a letter to the court (NYSCEF Document #90) as did NYCTA (NYSCEF Document #93).

As NYCTA properly argues, 22 NYCRR 202.8-g(a) does not require that the motion be denied or marked off. See also Abreu v Barkin and Assoc. Realty, Inc., 69 A.D.3d 420 (Sup. Ct. App. Div. 1 st Dept 2010) ("We reject defendants' argument that plaintiffs failure to provide a fully supported counterstatement of disputed facts in opposition to defendants' motion for summary judgment, in accordance with Rule 19-a of the Commercial Division of the Supreme Court (22 NYCRR 202.70), required the court to deem defendants' statement of material facts admitted. While the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so. There was sufficient evidence in the record to raise triable issues of fact and the court

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was not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in Rule 19-a").

Further, the Appellate Division, First Department has repeatedly held:

[t]hat it is the general policy of the courts to permit actions to be determined by a trial on the merits wherever possible and for that purpose a liberal policy is adopted with respect to opening default judgments in furtherance of justice to the end that the parties may have their day in court to litigate the issues ....

38 Holding Corp. v. New York. 179 A.D.2d 486 (App. Div. 1^st Dept. 1992); See also Gluck v. McDonough, 139 A.D.3d 628 (2016) (referencing that "strong public policy favors resolving cases on the merits") and Acosta v. Riverdale Dev., LLC, 72 A.D.3d 525 (2010) ("Finally, vacatur here was consistent with the strong public policy favoring resolution of cases on their merits"). Given this, the court declines to reject either NYCTA's or the City's papers for procedural defects...